Marines A & Ors v Guardian News and Media & Other Media

Material used in open court should ordinarily be available under the principle of open justice. A court must assess the material’s value for effective reporting and the harm that disclosure may cause. A real and immediate risk to life engages the unqualified protection of Article 2 and requires refusal of disclosure. Otherwise, qualified privacy and expression rights require a fact-specific proportionality assessment.

An order preventing identification of a criminal defendant is exceptional. The court should assess the relevant risk, the order’s effectiveness, alternatives, any real and immediate risk to Articles 2 or 3 rights, and the ultimate balance between Article 8 rights and open justice under Article 10.

Five Royal Marines were charged after an Afghan insurgent, already seriously wounded during an operation in Afghanistan, was shot by Marine A. At the Court Martial, Marine A was convicted of murder and Marines B and C were acquitted. Proceedings against Marines D and E had previously been discontinued.

The Judge Advocate General had made anonymity orders and had refused media access to video evidence and certain still images. The media sought access to the video and stills. Marines A to E challenged the lifting of the anonymity order.

The Court Martial Appeal Court determined the media application. It held that it lacked jurisdiction over the Marines’ challenge and, sitting as a Divisional Court, considered that challenge by judicial review. The central issues were the limits of appellate jurisdiction and when open justice may yield to risks to life, privacy, or safety.

1. Jurisdiction. The Court Martial Appeal Court had jurisdiction under Rules 153 and 154 of the Armed Forces (Court Martial) Rules 2009 to entertain the media’s challenge to refusal of access to exhibits. Those Rules were to be construed broadly and purposively. It had no jurisdiction to hear the Marines’ challenge to an order lifting anonymity: Rule 154 concerns restrictions on access or publication, and the preliminary-proceedings appeal provisions did not extend to an order made at the end of the trial.
2. Video and stills. The default position under open justice was access to material used in open court, particularly where it was sought for contemporaneous journalism. The governing exercise was the fact-specific proportionality assessment stated in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420. However, where release created a real and immediate risk to life, Article 2 was unqualified and no balancing exercise arose. The Judge’s findings of such a risk from release of the video, Category 1 stills, and four Category 2 stills showing a Marine holding a pistol were open on the evidence and were upheld. The court ordered release of the remaining Category 2 stills on which the Judge had not ruled.
3. Anonymity. The majority held that restrictions on identifying a defendant require a structured inquiry. The court must consider the risk to relevant rights, effectiveness and alternatives, whether naming creates or materially increases a real and immediate Article 2 or 3 risk, and, if it does not, the ultimate Article 8 and Article 10 balance. Open justice made public identification of Marine A, who had been convicted of murder, imperative. It also outweighed the less immediate risks to Marines B and C, despite their acquittals. Their judicial review applications failed.
4. Marines D and E. Their cases were remitted to the Judge because they had not been heard before the anonymity order was lifted.
5. Dissent. Holroyde J agreed that Marine A should be identified and that D and E should be remitted. He would also have quashed and remitted the order concerning B and C, because the Judge had omitted the fact-specific Article 8 and Article 10 balance and could not be said inevitably to have reached the same result.

The court further observed that images of a deceased or seriously injured victim may independently engage the victim’s and family’s Article 8 rights. Future applications should address that impact, even where no Article 2 risk is established.

• Court Martial Appeal Court: The media’s appeal concerning access to video evidence and still images was dismissed except that the court ordered release of further Category 2 stills.
• Divisional Court of the Queen’s Bench Division: Sitting as a Divisional Court because the Court Martial Appeal Court lacked jurisdiction over the Marines’ challenge, the court refused judicial review for Marines A, B and C and remitted the cases of Marines D and E.
• Court Martial: Marine A was convicted of murder and Marines B and C were acquitted. The Judge Advocate General lifted prior anonymity restrictions, subject to the challenges determined in this judgment.